For many years we considered that anything said during conciliation proceedings cannot be repeated in subsequent litigation. However, the Constitutional Court in September and Others v CMI Business Enterprise CC  ZACC 4 made it clear that Rule 16 of the CCMA Rules does not impose a blanket ban on the entirety of the content of conciliation proceedings. Consequently, it may be better to be safe than sorry when considering how frank a disclosure you are willing to make during the conciliation process.
Rule 16 provides that conciliation proceedings are private and confidential and are conducted on a without prejudice basis and that no person may refer to anything said at conciliation proceedings during any subsequent proceedings unless the parties agree in writing or as ordered otherwise by a court of law.
It was this later phrase, “or as ordered otherwise by a court of law”, that the Constitutional Court was required to interpret in the September case.
The Court began its consideration by analysing the purpose of Rule 16, which is to achieve the speedy resolution of disputes. In order to achieve this, the rule prohibits the disclosure of anything said at conciliation proceedings so as to allow the parties to be able to speak openly and honestly and without the concern that something they may say will be used against them at a later stage. It is “a safe harbour for parties who are attempting to resolve a dispute”.
However, the Constitutional Court held that an interpretation of Rule 16 that imposes a blanket ban on the entirety of the content of conciliation proceedings, including statements made during conciliation that are unconnected to or irrelevant to the settlement of the dispute, does not further promote the purpose of Rule 16, which is to allow parties to speak openly to settle the matter. Thus, there may be statements, if they are not related to the settlement discussions that can be disclosed later, but then only by agreement or by order of court.
In light of this judgment, parties should be cautious about what they say in conciliation proceedings. It is not a forum in which it is open season to make any comment about your employer or employee with impunity. For example, where an employer or employee verbally abuses the other party during such discussions, they cannot hide behind Rule 16 in an attempt to avoid their conduct being disclosed in subsequent proceedings.
This article is co-written with associate Owethu Mbambo.